1/25/2008

Ben Wittes on the DOJ Brief on the DC Gun Ban Case

It's easy to see why conservatives are in a tizzy. While the brief endorses the D.C. Circuit's view that "the Second Amendment protects an individual right to possess firearms unrelated to militia operations," it also emphasizes that adopting this view "does not render all laws limiting gun ownership automatically invalid" and insists that the lower court "did not apply the correct standard for evaluating [a] Second Amendment claim." What is the correct standard? Laws limiting gun ownership, the government argues, should be subject to "heightened scrutiny" under which "the practical impact of the challenged restriction" gets balanced against "the strength of the government's interest in enforcement of the relevant restriction." According to the Bush administration, "important regulatory interests are typically sufficient to justify reasonable restrictions." Because the lower court did not consider the D.C. law using this standard, the solicitor general argues, the case should be sent back for further consideration.

This is a pretty weak conception of a constitutional right. You can't imagine subjecting, say, the First Amendment to such a test. It would be laughable for the court to permit--or the executive branch to advocate--the abridgment of press or religious freedoms whenever the government's interest in restricting them served an "important regulatory interest" and therefore constituted a "reasonable restriction." . . .

Ben supports this increased flexibility with the Second Amendment because as he puts it: "Whatever conception the founders may have had of the amendment, they didn't have to think about situations like Virginia Tech, and they did not have inner-city gun crime." I suppose that my research has convinced me that no matter how well meaning gun free zones such as Virginia Tech might be, they have had unintended consequences -- that they encourage attacks and make them more successful. That said, and I appreciate his well meaning concerns, it is hard for me to see how the trade-offs that government faces with the Second Amendment could be different from say the First or the Fourth that also refers to "the right of the people." I thought that Ben had it right last year when he wrote that rather than eviscerating the constitution by selectively picking the parts that we agree or disagree with he wrote that it should simply be repealed or rewritten if we disagreed with it. See also this by Ben from last year. I particularly respect this position and admire people who take it because it must be very difficult for someone who supports gun control to take. The reason is simple: given how hard it is to alter the Constitution, accepting this argument means accepting strict limits on gun control.

Here is one question: if the costs of guns are so large, why do you have to have a lower level of scrutiny? If the costs are so high, won't you be able to meet the higher level of scrutiny?

There are two issues here. One describing what the DOJ brief says. I disagree with Ramesh Ponnuru at National Review Online about this, but I agree with Ben Wittes. You can see my take on all this here. There is an obvious difference between agreeing with Ben on what the DOJ brief was arguing and what Ben's views as the proper outcome of this case.

"...it is hard for me to see how the trade-offs that government faces with the Second Amendment could be different from say the First or the Fourth that also refers to "the right of the people.""

In dealing with the strictly legal aspects of the problem, you have probably put your finger on a thorny conceptual problem.

In the real world, there's no problem. Having eviscerated the Fourth amendment, subjecting it to the "compelling interests" of government agents posecuting the "war on drugs", and having made significant inroads on the First amendment thru the McCain-Feingold act and its attendant insults, gutting the Second amendment by allowing "reasonable restrictions" is merely a casual afternoon's exercise.

"This is a pretty weak conception of a constitutional right. You can't imagine subjecting, say, the First Amendment to such a test."

Wittes doesn't know what he is talking about. In reality, the First Amendment is routinely subjected to what is essentially the same intermediate test, where the speech at issue is commercial rather than political. The rationale for the distinction is that the First Amendment was chiefly intended to protect political and religious speech, but is worded broadly enough to have limited application elsewhere. If the Supreme Court is consistent in its application of the first two amendments, it will have little choice but to first figure out what a "well-regulated militia" is, then apply strict scrutiny where the affected right is in furtherance of the well-regulated militia, and intermediate scrutiny where it is not.

After reading Wittes's well-written article, I take back my comment on him not knowing what he's talking about. By and large, he clearly does. He's still wrong on the issue, though, as intermediate scrutiny is routinely applied in other important constitutional rights, such as commercial speech under the First Amendment, or sex-based discrimination under the Fourteenth.

Thanks, Xrlq. As far as the bill of rights go, there is at least a debatable point to some (not me) about whether the First Amendment covers commercial speech. If you agree that the Second Amendment guarantees an individual right as DOJ claims, I would think that you have a lot less wiggle room there.